HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
René Gagné
Applicant
-and-
Algoma University and Arthur Perlini and Cheryl Reed-Elder
Respondents
INTERIM Decision
Adjudicator: Caroline Rowan
Indexed as: Gagné v. Algoma University
APPEARANCES
René Gagné, Applicant ) C. Beaupré, Counsel
Algoma University and Arthur Perlini, Respondents ) Scott Williams, Counsel
Cheryl Reed-Elder, Respondent ) Adrienne Liang, Counsel
1This is an Application filed pursuant to section 53(5) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) on June 25, 2009 by the applicant, René Gagné. The underlying human rights complaint was filed with the Ontario Human Rights Commission (the “Commission”) on June 10, 2008.
2In his Application, the applicant referred to events which date back to 1998 and end in April 2008. He alleges discrimination based on his sexual orientation, his ancestry and the fact that he is francophone. More specifically, the applicant complains about what he refers to as the discriminatory hiring practices of the Algoma University (the “University”) and, in particular, the University’s failure to award him various full-time positions as a professor. According to the applicant, the discriminatory treatment against him intensified in the period from January 2008 to April 2008.
3In response, the respondents have raised the following preliminary issues which remain outstanding:
that the Tribunal should dismiss many of the allegations raised in the applicant’s original human rights complaint on the basis that they are untimely;
that the allegations which relate to the respondent, Dr. Reed-Elder, who was President of Algoma College Faculty Association (the “Association”), should be dismissed on the basis that they do not raise a prima facie case, or alternatively that they fall outside of the jurisdiction of the Tribunal in that they are the subject of a complaint filed by the applicant against the Association at the Ontario Labour Relations Board in Board File No. 1056-08-U. In the further alternative, the respondent, Dr. Reed-Elder, submits that the Tribunal should defer considering those allegations until they are finally dealt with by the Ontario Labour Relations Board;
that the applicant be directed to particularize certain allegations.
4A hearing was scheduled in this matter to address these preliminary issues.
5During the course of the hearing, counsel for the applicant and counsel for the University and Dr. Perlini were able to reach agreement regarding the request of the University and of Dr. Perlini for particulars in respect of the applicant’s complaint against them. Counsel for the applicant undertook to provide to the respondents the particulars requested by Counsel for the University and Dr. Perlini. In the circumstances, no order that particulars be provided is required at this time.
6With respect to the issue of delay, it is common ground that the applicant’s allegations of discrimination which relate to events occurring between June 10, 2007 and June 10, 2008 are timely and can therefore proceed. The applicant further advised that he was seeking to pursue allegations of discrimination dating back to 2005 and that all references in his complaint to earlier events were intended strictly as factual background. The parties agreed that any issue which may arise between them concerning the extent to which the applicant should be permitted to refer in his evidence to this earlier factual background would be raised with the Tribunal in the event of an objection when Mr. Gagné is testifying.
7At the hearing in this matter, the applicant clarified that his complaint against Dr. Reed-Elder relates only to her failure to pursue a grievance on his behalf in respect of the job competition which took place back in 2005. He also confirmed that he had raised no allegations of discrimination against Dr. Reed-Elder in respect of events occurring in the year prior to the filing of his complaint on June 10, 2008. There was therefore no dispute that the complaint against Dr. Reed-Elder should be dismissed altogether if the respondents’ timeliness objection were upheld. It was consequently agreed that the Tribunal would first address the timeliness issue before considering any of the other preliminary issues raised by Dr. Reed-Elder.
8The issue to be determined at this time therefore concerns whether the applicant’s allegations of discrimination in respect of events occurring between 2005 and before June 10, 2007 should be dismissed for delay.
Delay
9By way of background to this preliminary issue, the Tribunal notes that the allegations made in the Application concerning events which occurred in the year prior to the filing of his complaint on June 10, 2008 fall into the following categories:
The applicant’s complaint against the University and Dr. Perlini for treating him differently in the criteria required of his research because of his French Canadian ancestry as compared to other professors who teach in English. He refers in this regard to the fact that he was, as a consequence, not allocated the courses he should have been allocated and that the University and Dr. Perlini failed to order French language material for the library for him to use for his research.
The applicant’s complaint against Dr. Perlini for allegedly harassing him on the basis of his sexual orientation in 2008. These allegations include that Dr. Perlini grabbed Dr. Gagné, invaded his personal space and made inappropriate comments regarding Dr. Gagné’s sexual identity.
10The allegations of discrimination raised in his complaint which pre-date June 10, 2007, and which the applicant contends are part of the same series of incidents, fall into the following categories:
His complaint against the University and Dr. Perlini concerning the University’s failure in or about July 2005 to award him a three year contract position as a full-time French professor (the “Three-Year Contract Position”) allegedly due to his French Canadian ancestry and the anti-francophone sentiment at the University.
His complaint against Dr. Reed-Elder concerning the Association’s failure for the same reasons to pursue a grievance on his behalf in or about July 2005 concerning the job competition for the Three-Year Contract Position.
His complaint against the University and Dr. Perlini concerning the University’s failure in or about June 2006 to award him the balance of the Three-Year Contract Position after the successful Applicant vacated the position in June 2006.
11While the applicant expected to be awarded the balance of the contract when the successful applicant left after only one year, the University advised him in June 2006 that he was being awarded the position on a ten month contractual basis only for the upcoming 2006-2007 academic year. He was again awarded the position on a ten month contractual basis in June 2007 for the upcoming 2007-2008 academic year. Given that the applicant knew in June 2006 that he was not being awarded a two-year contract, his complaint of discrimination on the ground of his ancestry in not being awarded the balance of the Three-Year Contract Position, in my view, crystallized in June 2006 when he was awarded the first ten month contract for the position of French professor.
12In response to the timeliness objection, the applicant first contends that his complaints of discrimination are part of a series of discriminatory events which occurred both before and after June 10, 2007. The applicant also submits that it is necessary to hear evidence regarding the earlier events in order for the Tribunal to understand the pattern of systemic discrimination against francophones at the University.
13The applicant also argues, in the alternative, that the Tribunal should, in any event, exercise its discretion under section 34 of the Code to entertain those allegations since the applicant’s delay in raising them was incurred in good faith and no prejudice has resulted from the delay. In this regard, the applicant explains that his delay in raising his complaint about the job competition for the Three-Year Contract Position in 2005, Dr. Reed-Elder’s failure to grieve that job competition on his behalf in 2005, and the University’s failure to award him the balance of the Three-Year Contract Position when the position became vacant again in 2006 was related to his poor physical, psychiatric and emotional health commencing in early 2005 when the applicant was diagnosed with throat cancer.
14It is common ground that the applicant’s allegations against the University and Dr. Perlini concerning the incidents of alleged harassment and concerning the alleged differential treatment in the criteria required of his research (and, in particular, the way courses were allocated to him as a consequence and in the way books were ordered or not ordered for the library) in the one year period prior to the filing of his complaint on June 10, 2008 are timely and may proceed.
15The respondents however take issue with the applicant’s contention that these incidents of alleged differential treatment were part of the same series of events which occurred between June 2005 and June 2007 such that a complaint about these earlier incidents is timely. The respondents also dispute that the applicant’s delay in pursuing his complaints of discrimination in relation to the Three-Year Contract Position was incurred in good faith within the meaning of section 34 of the Code.
16Section 34 of the Code permits a person who believes that any of his or her rights under the Code have been infringed to make an application to the Tribunal alleging an infringement within one year after the incident to which the application relates. Even though the applicant’s original complaint to the Commission was filed when the old section 34 of the Code was in force, the Tribunal has found that the current section 34 provisions are applicable to applications, such as this one, filed under the transition provisions of the Code. See Boncori v. TRW Canada, 2009 HRTO 564; Marchand v. St. Michael’s Hospital, 2009 HRTO 566; and Chinatman v. Toronto District School Board, 2009 HRTO 1225.
17An application alleging an infringement of a person’s rights under Part I of the Code must therefore generally be made within a one year period after the alleged discriminatory incident (or after the last alleged discriminatory incident if there is a series of incidents). Section 34(2) of the Code, however, permits a person to make an application alleging an infringement of the Code more than one year after the alleged incident took place (or after the last incident if there was a series of incidents) only if the Tribunal is satisfied that the delay in filing the application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay if the application were to proceed. The relevant provisions of section 34 of the Code provide as follows:
- (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a)within one year after the incident to which the application relates; or
(b)if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
18In addressing the timeliness issue in this case, the first question to be determined is whether the alleged discriminatory treatment which the applicant contends occurred in the period which pre-dates June 10, 2007 are in fact part of a series of incidents, the last of which occurred after June 10, 2007. If so, the applicant is entitled to raise those incidents as timely having regard to subsection 34(1)(b) of the Code. If not, in order for the Tribunal to have jurisdiction to entertain those allegations, the Tribunal must be satisfied that the delay in raising a complaint about those earlier incidents was incurred in good faith and that no substantial prejudice will result to any person affected by the delay pursuant to subsection 34(2) of the Code.
Was there a Delay?
19In considering the meaning of the term “series of incidents” under section 34(1)(b) of the Code, the Tribunal has adopted the following definition of the word series: “a number of things or events of the same class coming one after another in spatial or temporal succession” . See Pakarian v. Chen, 2010 HRTO 457. As noted in Savage v. Toronto Transit Commission, 2010 HRTO 1360, a gap of more than one year between incidents in a series would, in most cases, interrupt the series.
20In the present case, the allegation of discrimination against Dr. Reed-Elder relates to a single event, which occurred in July 2005 when she refused his request to pursue a grievance on his behalf concerning the results of the job competition for the Three-Year Contract Position. As there are no other allegations of discrimination raised by the applicant against Dr. Reed-Elder, his complaint against her is untimely and will only be entertained if the Tribunal is satisfied that the conditions set out under section 34(2) of the Code have been met.
21With respect to his complaint against both Dr. Perlini and the University, the applicant refers to a number of incidents occurring within one year prior to the filing of his Application in June 2008 and also refers to incidents occurring in July 2005 when the applicant was not awarded the Three-Year Contract Position and in June 2006 when he was not awarded the balance of the contract for that position. These incidents cannot however, in my view, be construed as part of the same series of discriminatory incidents as those about which he complains in the period from June 10, 2007 to June 10, 2008.
22Those earlier incidents involving hiring decisions in 2005 and 2006 are firstly entirely unrelated in nature to his complaints of alleged harassment by Dr. Perlini in 2008 on the ground of his sexual orientation. They are not further sufficiently temporarily-connected to the alleged differential treatment in respect of the criteria required of his research in 2007 and 2008 to be considered part of a series of incidents within the meaning of section 34(1)(b) of the Code.
23As noted, even though the applicant refers to the decisions of the University and Dr. Perlini in June 2006 and again in June 2007 to award him a ten month contract for the next school year, his complaint of discrimination in not being awarded the balance of the Three-Year Contract Position that was vacated in June 2006 crystallized in June 2006 when he found out that he was being awarded a ten month contract for the following school year rather than a two year contract. They are not separate incidents of alleged discrimination which can be construed as part of a series and are, in any event, separated by a period of a full year. The earlier incident of alleged discrimination in July 2005 in not being chosen as the successful applicant for the Three-Year Contract Position is similarly separated by almost a full year since the next alleged incident in June 2006.
24The situation in the present case is therefore significantly different from that before the Tribunal in Cappocci v. York Catholic District School Board, 2009 HRTO 107, on which the applicant relied. In that case, the Tribunal rejected the respondents’ contention that the entire application was untimely after finding that the allegations raised in the application involved alleged discriminatory treatment of an ongoing nature in that the applicant continued to be excluded in the one year period prior to the filing of his complaint from attending School Council and committee meetings. The issue in that case did not concern discrete incidents, but rather concerned alleged ongoing discriminatory treatment in the form of on-going exclusion over a period of in excess of a year and continuing until shortly prior to the filing of the application.
25The applicant’s counsel also referred in argument to the statements made by the Tribunal in Cappocci v. York Catholic District School Board, cited above, at para 20 to the effect that, in order to maintain allegations raised in a complaint, it is sufficient at a preliminary stage if the applicant raises allegations which, if accepted as true, would be enough to establish a prima facie case. Those comments were however made in the context of the respondents’ request that the Application be dismissed for failing to make out a prima facie case of a contravention of the Code. They were not made in the context of the timeliness issue. It is not further relevant to a request for dismissal for delay whether the allegations concerning incidents which occurred more than a year prior to the filing of the application make out a prima facie case of discrimination, if accepted as true and provable. As noted above, in order for the Tribunal to find those allegations to be timely, they must be part of a series of incidents, the last of which occurred within one year prior to the filing of the application pursuant to section 34(1)(b) of the Code.
26In the present case, the incidents of discrimination alleged by the applicant to have occurred in July 2005 and June 2006 are separated by significant periods of time both from each other and from the events alleged to have occurred between June 10, 2007 and June 10, 2008. They also bear little relationship to the incidents of harassment which the applicant alleges occurred in 2008. In all the circumstances, even accepting the applicant’s allegations raised in his complaint as true, I am unable to find that the hiring decisions dating back to 2005 and 2006 and the alleged discrimination in the year prior to June 2008 constitute a series of incidents within the meaning of section 34(1)(b) of the Code. I consequently find that the allegations of discrimination raised in the Application which pre-date June 10, 2007 are untimely.
Was the Delay incurred in Good Faith?
27In addressing whether the applicant may nonetheless pursue those untimely allegations, the first question to be determined is whether the Applicant’s delay in raising them was incurred in good faith. As noted in Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, in order to find that a delay in pursuing one’s complaint was incurred in good faith, the applicant must provide a reasonable explanation for why he or she did not pursue his or her rights under the Code in a timely manner. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paras. 24-25, the Tribunal reviewed what is required to establish that delay has been incurred “in good faith”:
In my view, where an Applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the Applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.
In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applications to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an Applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquiries about options for pursuing the alleged wrong.
In order to establish that the delay was incurred in good faith, the applicant must meet a high onus to provide a reasonable explanation for the delay and must do more than establish that the delay was not incurred in bad faith.
28In the present case, the applicant contends that his delay in pursuing his complaint about the job competition in 2005, about Dr. Reed-Elder’s refusal to grieve it and the University’s failure to award him the balance of the Three-Year Contract Position as a two year contract in June 2006 was related to his battle with throat cancer. The applicant introduced into evidence medical records concerning his physical state of health during the period after January 2005 when he was diagnosed with an aggressive form of cancer. Shortly after he was diagnosed with cancer, his treating physician considered his prognosis to be “quite grim considering the extent of the disease”. The applicant took a medical leave of absence from the University commencing in January 2005 during which time he was hospitalized and treated with concurrent chemo/radiation for a period of eight weeks until in or about April 2005 when he returned home to recuperate. He took pain medication and anti-depressants for a period of time but discontinued taking those in about June 2005. He had no other treatments and took no other medications after July 2005. He did however have surgery in September 2005 to dilate his oesophagus in order to address a side-effect of the radiation treatment.
29As noted, the applicant was interviewed for the Three-Year Contract Position in June 2005 and he learned that he did not get the job in early July 2005. He approached Dr. Reed-Elder about filing a grievance shortly thereafter. In explaining the reasons for his delay in pursuing a complaint about these issues, Dr. Gagné testified about his mental state while he was undergoing treatment in early 2005 and in the period thereafter when his focus was on battling the disease. He referred to the fact that, in or about the third or fourth week of his treatment in early 2005, he began to dissociate in that he saw the person undergoing treatment as someone other than himself, a person of Italian origin. He indicated his belief that this was not voluntary or conscious, but rather resulted from a survival instinct. He also testified that he felt as though the issues related to the job competition were placed behind a wall in order to assure his emotional survival. He estimated the period of time during which he suffered from what he described as “foggy brain” was approximately three years after his diagnosis and treatment and noted that this period coincides with the critical time period for assessing survival rates following treatment.
30While he resumed teaching one course commencing in September 2005 and then two courses commencing in January 2006, he indicated that he could only muster the energy to teach his courses and that he would then go home and sleep. He referred to his return to teaching as therapeutic in that it was part of a strategy to normalize his life. Although he was back at work, he contends that prior to 2008 he was emotionally and physically unable to pursue the human rights matter in the absence of the Association’s support.
31The medical documentation which the applicant introduced into evidence speaks only to his physical condition and, in that regard, suggests that the acute phase of his illness was in early 2005 prior to his interview for the Three-Year Contract Position and before he learned in early July 2005 that he had not been awarded the job. The applicant did not provide any medical documentation to substantiate his claim that he was psychologically and/or emotionally unable to pursue a complaint prior to June 2008. None of the medical documentation which he supplied to the Tribunal therefore indicates any reason why he could not have pursued a complaint with the Tribunal in the period after his surgery in the Fall of 2005.
32The only evidence he offered in that connection was his own subjective account of how his illness and the outcome of the job competition had affected him psychologically. That evidence is not, however, sufficient to support the medical justification he alleges for his delay in pursuing the matter. This is particularly true in the present case where the feelings of dissociation to which he referred in evidence did not prevent him in July 2005 from seeking to pursue a grievance through the Association regarding the very same job competition.
33The situation in the present case is therefore akin to that in Quimado v. S.A. Armstrong, 2009 HRTO 110 and to that in Doyle v. Canarm, 2009 HRTO 674, in which the Tribunal found that the applicant had not provided a reasonable explanation for the delay in pursuing a human rights complaint. In both of those cases, like the present one, the medical documentation provided by the applicant to explain the delay did not address or provide any opinion as to why the applicant was not able to pursue a human rights complaint earlier and the evidence also indicated that the applicant’s health issues did not prevent the applicant from initiating other legal proceedings in the intervening period.
34In the present case, it is understandable that the applicant’s priority in the critical three year period following his cancer diagnosis in January 2005 was battling the disease and that he did not wish to pursue a human rights complaint in July 2005 without the Association’s support. However, the fact that his priorities lay elsewhere does not justify such a lengthy period of delay. In the absence of any medical documentation before the Tribunal to suggest that the applicant was suffering from a disability which prevented him from pursuing a complaint in the period after October 2005, I am not persuaded that the applicant has provided a reasonable explanation for waiting until June 10, 2008 to file his complaint.
35In all the circumstances, I find that the applicant has not satisfied his burden of demonstrating that the delay in filing this Application was “incurred in good faith” as required under section 34(2) of the Code. As such, it is not necessary to determine whether substantial prejudice would result to the respondents if the Application were to proceed.
36In light of the Tribunal’s finding that the delay was not incurred in good faith, the Tribunal has no power pursuant to section 34(1) of the Code to entertain the allegations of discrimination made in the Application which predate June 10, 2007. The applicant’s allegations of discrimination relating to the job competition in 2005, Dr. Reed-Elder’s refusal to grieve it and the University’s failure to award him the balance of the Three-Year Contract Position are therefore dismissed on the basis that they are untimely. The extent to which the applicant may be entitled to refer to those events as part of the factual background to his complaint, like the events referred to in his complaint which predate 2005, will be addressed by the Tribunal in the event of an objection at the time the applicant is testifying.
Order
37The applicant’s allegations of discrimination which predate June 10, 2007 are hereby dismissed as untimely. The Application as against Dr. Reed-Elder is therefore dismissed. The applicant’s allegations against Algoma University and Dr. Arthur Perlini in respect of the events referred to in his complaint which occurred in the period between June 10, 2007 and June 10, 2008 will be dealt with by the Tribunal at a hearing into the merits of the Application.
38I am not seized.
Dated at Toronto, this 4th day of October, 2010.
”signed by”___________
Caroline Rowan
Member